A Louisiana ironworker was hired in late 2005 and assigned early the following year to work on a New Orleans bridge. Apparently because he used wet wipes rather than toilet paper, his crew superintendent pronounced him a "princess" and began making fun of him, relentlessly. Eventually, the ironworker managed to take the superintendent and the company to court.
What happened. "Wilson" joined Boh Brothers and became part of an all-male maintenance crew for the Twin Spans Bridge between New Orleans and Slidell. The superintendent, "Ward," approached Wilson every time he bent over, and Ward simulated intercourse, sometimes exposed himself to Wilson, and constantly called him names. Wilson complained and was ignored. But at one point, Wilson asked to see one or more time records, and a higher-up over Ward told Ward that Wilson had asked to see his coworkers’ time records—an offense that could lead to termination.
Wilson later met with Ward’s boss and complained about the harassment, which led him to be given an unpaid 3-day suspension, but it wasn’t clear whether that was punishment for the time records inquiry. Wilson was then transferred to another worksite and later filed a complaint of same-sex harassment and retaliation with the Equal Employment Opportunity Commission.
He was laid off in February 2007 for lack of work, and the EEOC filed suit on his behalf. Wilson’s case was tried by a jury, which awarded him almost $500,000 in damages. But Boh Brothers appealed the verdict to the 5th Circuit, which covers Louisiana, Mississippi, and Texas.
What the court said. Judges reviewed the U.S. Supreme Court’s landmark 1998 same-sex harassment ruling in Oncale v. Sundowner. They cited the kinds of harassment described in the ruling, including that the harasser is homosexual or is generally hostile to members of his own sex. But Wilson alleged a different type—one based on his own failure to match a male stereotype that Ward held. But Ward testified that he did not view Wilson as feminine, so judges decided against Wilson.
Describing Ward as "a world-class trash talker and the master of vulgarity in an environment where these characteristics abound," judges saw no unlawful same-sex discrimination. They announced that it is not "the business of the federal courts … to clean up the language and conduct [at] construction sites." EEOC v. Boh Brothers, U.S. Court of Appeals for the 5th Circuit, No. 11-30770 (7/27/12).
Point to remember: This ruling has surprised many employment law experts. We think Ward’s behavior was sufficiently outrageous to amount to harassment and that many other circuits would have ruled for Wilson.